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Saturday, December 29, 2012

Ind. Decisions - "Contraception Mandate Faces Justice Sotomayor and Seventh Circuit"

In an order issued yesterday, Dec. 28th, in the case of Korte v. Sebelius, the 7th Circuit panel, 2-1, granted the motion for an injunction pending appeal.

A day before, Dec. 27th, in another case, Grote Industries v. Sebelius, Indiana district court Judge Sarah Evans Barker denied a similar motion. See the ILB entry here.

See this long Volokh Conspiracy post this morning by Jonathan Adler that discusses yesterday 7th Circuit ruling (it does not mention the Grote ruling). The post begins:

It’s been a significant week for litigation over the contraception mandate. On December 20, a motions panel of the U.S. Court of Appeals for the Tenth Circuit denied employer Hobby Lobby’s motion for an injunction pending appeal. As a private employer, Hobby Lobby is not eligible for the safe harbor from enforcement, and will be subject to the mandate at the start of the new year. As a consequence, Hobby Lobby filed an emergency application for a stay with the Supreme Court, which Justice Sonia Sotomayor denied with a brief four-page opinion. According to Justice Sotomayor, Hobby Lobby could not meet the extraordinarily demanding standard for such an injunction. Lyle Denniston has a brief report on SCOTUSBlog, and Ed Whelan critiques the decision on Bench Memos (see also here). for what it’s worth, I am not as convinced as Whelan that Hobby Lobby’s rights under the Religious Freedom Restoration Act are “indisputably clear.” While I think religious institutions have a strong RFRA-based free exercise claim, and that religious institutions — and not the government — define the contours of what the exercise of a given religious faith requires — I am not sure that private, for-profit corporations can avail themselves of RFRA in the same way as avowedly religious institutions., even when privately held by religiously devout individuals, nor am I aware of any case law that would clearly establish this point (but see below).

Meanwhile, the U.S. Court of Appeals for the Seventh Circuit is looking more favorably on another private employer’s challenge to the contraception mandate. In what Lyle Denniston calls “the most significant federal appeals court ruling so far on the new federal health care law’s contraceptives mandate,” a divided panel of the Seventh Circuit granted a private employer’s emergency motion for an injunction against enforcement of the contraception mandate. Judges Flaum and Sykes voted in favor of the employer’s claim; Judge Rovner against.

Posted by Marcia Oddi on December 29, 2012 10:59 AM
Posted to Ind. (7th Cir.) Decisions